126 N.J.L.J. 1486
November 29, 1990
Conflict of Interest: Member of
Board of Adjustment Accepting
Contract Work as Special Attorney
The Inquirer is a member of a board of adjustment and the
municipal attorney of that town wishes to refer matters to him. He
will represent the town providing there is no conflict of interest.
Such matters, we are told, will "range from advising the Mayor and
Council of the Town ... to handling In Rem tax foreclosure
actions." Under his arrangement with the municipal attorney, he
will be an independent contractor hired on an ad hoc basis and he
will receive no employee benefits. He will not be designated as
"Assistant Town Attorney." He will bill the town for services at
his usual rate.
The Inquirer recognizes, of course, that he may not be involved in any matters involving the board of adjustment. Since in both capacities, as a board member and ad hoc attorney, he will be representing the town, there is no conflict in the two positions. See Opinion 573, 116 N.J.L.J. 271 (1985) and Opinion 466, 106 N.J.L.J. 518 (1980).
The Inquirer believes that, in connection with his representation of the town on an ad hoc basis, he is not part of the "official family of the municipality." This, despite the fact that he may be called upon as noted above, to advise the mayor and council. He cites for his authority our Opinion 428, 104 N.J.L.J. 1 (1979) and Opinion 640, 125 N.J.L.J. 894 (1990). However, the factual situations in those inquiries differ from those presented by the Inquirer.
In Opinion 428, supra, 104 N.J.L.J. 1, the question posed was whether an attorney representing municipalities and their employees through an insurance company may represent private clients in unrelated matters before a planning board, board of adjustment or other governmental bodies of that municipality. We held that the Inquirer was not truly a municipal attorney in the sense of being a member of the official family appointed to his position by the governing body. Rather, he was an attorney chosen by the insurance company for the purpose of representing the municipal body in a particular matter. We concluded that the proposed representation of private clients before the municipal bodies was proper.
Similarly, in Opinion 640, supra, 125 N.J.L.J. 894, the municipality was self-insured and the inquiring attorney was being asked to defend the municipality only in tort matters for which he would be paid from the insurance fund and not from the municipality's general budget. We held that, as in the situation where an attorney has been retained by an insurance company, there is little likelihood that the public would associate such an attorney so closely with the municipal government as to give rise to any appearance of a conflict of interest insofar as the attorney's private municipal practice is concerned. Citing our Opinion 428, supra, 104 N.J.L.J. 1, we concluded that the inquirer was not a member of the official family and could represent private clients before municipal boards.
In the present inquiry, in accepting the position of an ad hoc attorney for the town, and on occasion perhaps advising the mayor and council, the attorney becomes a part of the "official family." As such, he will be barred from taking any matters adverse to the town before local town boards or municipal offices, including the municipal court. For discussion as to how long this ban will continue, see our Opinion 294, 97 N.J.L.J. 993 (1974).